Privacy Legislation and Its Impact on Trial Lawyers

Trial lawyers know how valuable witness testimony is to the success of their client’s case. Proposed privacy legislation is threatening the attorney’s ability to locate witnesses, judgment debtors, co-workers, and physical assets in a cost-effective time and manner.

One proposed bill will make it illegal to sell or have possession of personal identifiers (Social Security number, dates of birth, driver license numbers), the means by which electronic databases distinguish between individuals with similar names, addresses, or dates of birth.

Growing concerns about identity theft are fueling legislative efforts to curtail access to the aforementioned personal identifiers. Data breaches at banks, retailers, and even government agencies are sparking a bipartisan effort to cultivate political favor with constituents, who are (rightfully) concerned about the potential financial losses an identity theft case might create.

Another bill would require that entities holding “personal information” take measures to “secure” it and to notify customers (or clients) in the case of a “breach.” The broad definition could be construed to include private investigators and law firms that maintain files with the personal identifiers of their clients.

Imagine the consternation that might arise from a “breach” of a digital client file from an outside source. Would your firm be required to notify ALL of your clients that a “breach” had occurred? How would your firm undertake such a massive action? What would be the cost?

There is also a trend toward a European-style (EU) privacy environment, which exists in our Canadian neighbor to the north. Access to data for the private sector does not exist there as it does here. Any attorney or investigator who has ever tried to locate a witness in Quebec or Vancouver can attest to that.

The net result for trial attorneys if such legislation is passed will be a dramatic increase in costs to locate witnesses, defendants, co-workers, assets, etc. Many attorneys practicing now may not recall the “pre-Internet” age, when process servers and investigators found witnesses by visiting old addresses, talking to neighbors, checking court files, and generally spending hours driving around and talking on the phone. It was tiresome, tedious, and grinding work and almost impossible to imagine in today’s environment of heavily secured housing developments. The cost of undertaking such an effort would be significant.

Please take the time to review the accompanying article from the National Council of Investigative and Security Specialists (NCISS) legislative chair, “Privacy Momentum Increases in Congress.” Our lobbyists are carefully monitoring the status of these and similar bills. Justice attorneys and trial lawyers need to engage in a concerted lobbying effort to ensure that exemption language exists for “business purposes” (litigation / investigation / due diligence).

Consider providing this information to your lobbyists in your state and national associations. We all have a lot at stake in these perilous times.